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alex reese, Attorney

Category: Legal

Satisfied Customers: 3128

Experience: BS, MS, JD

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Hello, I received a potential conflict letter from Legal Zoom.

Customer Question

Hello, I received a potential conflict letter from Legal Zoom. The name I am trying to trademark is "Wtchcrafts Artisan Alchemy". I sell handcrafted candles and ritual supplies. Should I be concerned with this particular potential conflict as we both sell candles? It seems to me that the three words of my business name and the three words of this business name are sufficiently generic in and of themselves and sufficiently different in combination that the names would not cause confusion in the marketplace. What do you think? Thank you.

this one is a close call, but I would tend to agree with you since there are only 1/3 words in the name in common and "alchemy" is somewhat generic given the goods involved (although that last point is debatable)

Customer:

There are alot of businesses who also use the word alchemy, though they are not candlemakers. This seems to me to support the idea that alchemy is also generic enough for me to also use, as it is a word used ubiquitously in the craft. Would you agree, given the fact that there are other registered trademarks using the word alchemy?

alex reese :

You may want to see what the USPTO thinks and if they allow it then that shoudl give you more confidence that there would be no legal problems (but the fact that the PTO grants your TM does NOT mean you are legally "cleared" to use it...I know it doen't seem to make sense, but TMs can be found invalid due to being confusingly similar to other TMs)

alex reese :

Yes, if the reality is that "alchemy" is a commonly used term in the business then that helps you

Customer:

How would I find out what the USPTO thinks?

Customer:

If the other candlemaker user wanted to stop me from using my business name, and sent me a cease and desist letter, what would be the chances that this other business would succeed in a legal conflict, given the generic-ness of the word alchemy?

alex reese :

I meant by submitting your TM application, which is examined by the PTO

Customer:

Ok, on the first question.

Customer:

This other candlemaker started using the word alchemy in her business name after i did. We both sell on Etsy.

Customer:

but she has applied for a TM first.

alex reese :

They would have a hard time showing consumer confusion if that term is common, esp. given the 2 other words that are different

Customer:

She hates me and slanders me on her FB business page all the time.

alex reese :

and the word "Alchemy" alone would be hard for them to have exclusive rights to given what you have said about the commonality of the word

Customer:

I am worried that she might try to bully me.

Customer:

She tried to claim she had the sole legal right to make and sell black drippy candles.

alex reese :

The best solution of course, to save all this hassle, would be to drop the "alchemy" from the name...but I understand that you wnat to use it

Customer:

I'm known by this name.

alex reese :

I see

alex reese :

I think you have a decent position

Customer:

She sent me a "cease and desist" letter to stop making black drippy candles. Of course, I ignored it. You clearly can't trademark black drippy candles, even a layperson like me knows that.

Customer:

She is trying to destroy my business.

Customer:

Because I am her top competitor on Etsy.

Customer:

So, if she sends me a cease and desist letter on my business name, you think I am in a position to defend my name?

Customer:

and can safely ignore it should she do that?

Customer:

as I did with the black drippoy candle attempt?

Customer:

This woman has gone to some incredible lengths to destroy my business and intimidate me - she inflames her FB readers to send me feces through the mail - this is the kinds of things she does.

Customer:

I could probably prove through Etsy records (hopefully) that I actually started using the word alchemy first.

alex reese :

wow, well yes I think you can ignore her because if she really wants to take it to the next level, she will have to hire attorney to write you letters and/or sue you....which means spending money, and most people will not do that unless they think they have a real case

Customer:

and then she tried to claim, I "stole" it from her

alex reese :

any evidence of you use, esp. prior use, will be very important

Customer:

do you think she has a real case?

alex reese :

no

Customer:

I don't, but I'm not a legal expert

Customer:

thank you

Customer:

she also tries to claim that I am causing confusion in the market

alex reese :

also, you should document and keep records of all the harassment, if she tries to push harder, you can threaten to sue (or actually) sue for her interference with your business etc.

alex reese :

best of luck!

alex reese :

slander/defamation etc.

Customer:

by selling candles and using the standard kinds of packaging available in the marketplace to sellers of products I sell

Customer:

ok

Customer:

I mean, let's be real, there's only so many things a person can do with candles

alex reese :

i agree

Customer:

thank you

Customer:

Ok, so to to make sure I understand - you think I have a pretty good chance of obtaining my TM for my business name and that I have pretty sound case for depfending my business name should this woman try to hassle me?

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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